FCC Wireless SPAM Proceeding

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Thu, 11 Mar 2004 12:28:34 -0800
From: Robert Cannon <rcannon100 () YAHOO COM>

For Immediate Release:
        News Media Contact:
March 11, 2004
              Rosemary Kimball at (202) 418-0511

                         e-mail:
rosemary.kimball () fcc gov

FCC SEEKS COMMENT ON RULES TO ELIMINATE SPAM FROM
MOBILE PHONES
Commission Also Asks for Comments on Possible “Safe
Harbor” for Telemarketing Calls to Mobile Phones

        Washington, DC -- Today the Commission adopted a
Notice of Proposed Rulemaking and Further Notice of
Proposed Rulemaking relating to protecting  consumers
from SPAM and unauthorized telemarketing calls on
their mobile phones.
         The FCC is asking for comments on how to best
protect consumers and businesses from the costs,
inefficiencies and inconveniences of receiving
unwanted electronic mail messages on wireless devices
such as mobile phones.  This action is in response to
Congress’ passage of the Controlling the Assault of
Non-Solicited Pornography and Marketing Act of 2003
(CAN-SPAM Act).
        The Commission is also seeking further comment on two
issues related to the restrictions under the Telephone
Consumer Protection Act (TCPA).  For autodialed and
artificial or prerecorded message calls to wireless
telephone numbers, we seek comment on the possibility
of instituting a “safe harbor” for telemarketers to
allow them reasonable opportunities to comply with the
rules in the era of local number portability.  In
addition, the Commission seeks comment on whether, as
part of its safe harbor, telemarketers should be
required to update their calling lists every 30 days
using the national do-not-call registry, to be
consistent with a possible rule change by the Federal
Trade Commission (FTC).

SPAM

Section 14 of the Act requires the FCC to promulgate
rules to protect consumers from unwanted mobile
service commercial messages which it defines as
“commercial electronic mail message that is
transmitted directly to a wireless device that is
utilized by a subscriber of commercial mobile service”
in connection with such service.
Specifically, the Commission asked for comments on,
among other things:
•       The ability of senders to determine whether a
message is a mobile commercial electronic mail message
and methods to enable the sender to make this
determination; for instance, whether there should be a
list of, or standard naming convention for domain
names, or an individual registry of e-mail addresses.
Another area for comment is that of automatic
challenge-response mechanisms that alert senders they
are sending their message to such a subscriber.
•       How to provide subscribers with the ability to avoid
receiving mobile service commercial messages sent
without the subscribers’ prior consent, and how to
indicate electronically a desire not to receive future
mobile service commercial messages from specific
senders.
•       Whether commercial cellular providers should be
exempted from having to obtain express prior
authorization before sending a commercial message to
their customers.

•       How senders can comply with the Act in general,
given the unique technical limitations, particularly
message length limitations and the information
required to be included in messages by the Act.

TCPA Further Notice

        The Telephone Consumer Protection Act (TCPA)
specifically prohibits most calls using an autodialer
or artificial or prerecorded message “to any telephone
number assigned to a paging service, cellular
telephone service, specialized mobile radio service,
or other common carrier service, or any service for
which the called party is charged.”  Beginning
November 24, 2003, local number portability (LNP) has
permitted subscribers to port numbers previously used
for wireline service to wireless service providers.
Telemarketers must ensure that they do not place
autodialed or prerecorded calls to wireless devices.
        The Commission is now seeking comment on the adoption
of a limited “safe harbor” for telemarketers that call
wireless numbers that have recently been ported from
wireline service.  Telemarketers contend that even a
ported number database will not allow them to update
their call lists instantaneously when consumers port
their wireline numbers.  As a result, telemarketers
may not have a reasonable opportunity to comply with
the rules.
        In a separate but related matter, on January 23,
2004, the Consolidated Appropriations Act of 2004 was
signed into law, requiring the FTC to amend its
Telemarketing Sales Rule to require telemarketers
subject to those rules to obtain the telephone numbers
on the do-not-call registry once a month.  The FCC
rules currently provide a safe harbor for those
telemarketers and sellers that access the list
quarterly, as do the FTC rules.  The FTC released a
Notice of Proposed Rulemaking on February 10, 2004,
proposing to amend its rule so that telemarketers and
sellers will need to use the updated national
do-not-call registry every thirty (30) days to purge
those numbers from their calling lists.  Without FCC
action to amend its safe harbor provision,  many
telemarketers might face inconsistent standards
because the FTC’s jurisdiction extends only to certain
entities, while FCC jurisdiction extends to all
telemarketers.
The FCC is asking for comments on:
•       Whether it should adopt a limited safe harbor
provision for telemarketers that call telephone
numbers that have recently been ported from a wireline
telecommunications provider to a wireless
telecommunications provider.

•       Whether the FCC safe harbor provision requiring
telemarketers to access the national do-not-call
registry and scrub their call lists quarterly should
be amended to require them to do so every 30 days, in
order to remain consistent with the Federal Trade
Commission’s proposed rule change.

        Action by the Commission March 11, 2004, by Notice of
Proposed Rulemaking and Further Notice of Proposed
Rulemaking (FCC 04-52).  Chairman Powell,
Commissioners Abernathy, Copps, Martin and Adelstein,
with Chairman Powell and Commissioners Copps and
Martin issuing separate statements.



     - FCC -

CGB contact: Ruth Yodaiken at (202) 418-2512
CG Docket 04-53
CG Docket 02-278






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